Condensed Torts Outline For Law School

7 INTENTIONAL TORTS: (1) Battery, (2) Assault, (3) False Imprisonment, (4) IIED, (5) Trespass to land, (6) Conversion, (7) Trespass to chattels

    Intentional must be volitional
    Knowledge or substantial certainty (Garratt)
    Purpose (Ghassemieh)
    Transferable: person to person, tort to tort ®

Battery: Intentional, unconsented, harmful or offensive (reasonable dignity) bodily contact.

    Contact can be indirect (Fisher: taking tray) (Leichtman: blowing smoke)
    Intent to touch (White)

Assault: Intentional, threat (harmful or offensive), apparent ability, imminent expectation

    Consider demeanor, tone, and body language (Vetter)
    Imminent means without significant delay ®

False imprisonment: Intentional, unlawful restraint (physical liberty), aware or harmed.

    Physical barriers, believable force, or threat of force ® (Wuennenberg)
    Can’t be reasonable means of escape (Daughters of Charity)

IIED: Intentional, outrageous conduct, to cause (or reckless disregard) severe emotional distress

    Resent the actor and exclaim outrageous
    Immediate family if present or onlooker if bodily reaction (R2)
    Close family if bodily injury + live (R3)
    Ordinary sensibilities unless knowledge of sensitivities (Eckenrode)

Trespass to Land: Intentional, unconsented, person or property on/above/below another’s land

    Knowledge or purpose intent required
    Remaining when asked to leave or not removing property when asked
    Tangible (Amphitheaters), high concentration ≠ exclusive possession (Martin)

Conversion: Intentional, complete or substantial deprivation, of property (Theft or destruction)

    Consider duration, hostility, good faith, harm, inconvenience ®
    Information if saleable OR product of labor/genius
    Damages equal the value of the goods

Trespass to Chattels: Intentional, deprivation, of movable property

    Consider duration, hostility, good faith, harm, inconvenience ®
    Damages equal diminution in value

DEFENSES – INTENTIONAL TORTS: (1) Consent, (2) Self-defense, (3) Defense of others, (4) Defense of property, (5) Necessity. Burden is on the defendant to prove.

Consent: Explicit / objectively implied by facts (in/action, relationships), law (health) (O’brien)

    Limited in scope (Overall): Sports, Consensual fights (Maj: neither vs. Min: both)
    Revocable. Vitiated by Duress, incapacitation, Infancy (agg appropriate)
    Great disparity of power (Robin)
    Misrepresentation: Harmful, material surprise. (McPherson)

Self-defense: Honest, reasonable, belief force is necessary to physically protect (Tatman)

    If actor is leaving not justified in shooting him in the rear (Coleman)
    Deadly force only to prevent deadly force. Reasonable. Retreat? Home?

Defense of Others: If reasonable, correct belief of danger existing

Defense of Property: Reasonable, non-deadly force, to protect property. (Katko)

    Fresh pursuit only if fresh (Katko)
    Shopkeeper’s privilege (Teel) reasonable detention, time, suspicion for theft

Necessity: Can justify trespass (Ploof), but liable for damages (Vincent). Life>Property

    Doing public good, no damages (Surocco)
    Compensate for any taking, even emergency takings (Wegner)

NEGLIGENCE: (1) Duty, (2) Breach: BDuty: If create risk of physical harm, duty to use reasonable care to minimize (Heaven + R)

    Consider entire course of conduct (malfeasance)
    Exceptions to nonfeasance rule:
    Rescuer: reasonable care in rescue efforts (Lacey)
    Increase risk: must mitigate ®
    Special relationship: owe reasonable care to protect
    Custodian (unlike Doe)
    With perpetrator and with victim
    Categorical waivers of duty possible for public policy reasons (KFC + R)

Property Owner: (Stagl) Reasonable precautions of foreseeable dangers including 3rd party. (Nelson) Trespasser, willful or wanton injury. (R3) full duty of care except for flagrant trespassers
Attractive nuisance: (1) kids likely to trespass, (2) serious unobvious risk, (3) burden to fix is small (Bennet + R2) – rescuers covered by doctrine

Breach: B Burden < Probability * Injury Burden can be non-pecuniary things (Kimbar) Children under 5 incapable of breach (Strait) unless adult activity + public policy requires. Auto, airplane, boats (Dellwo)

Statute violation breach per se or just a factor like in Hooper industry custom?
(1) violation, (2) hurt in way contemplated (Gorris), (3) protected population (potts)

Res Ipsa Loquitur: the thing speaks for itself (1) agent or instrument (2) in exclusive control (3) causes a negligent accident and (4) victim didn’t cause it (Colmenares Vivas)

    Defendant has more access to knowledge.
    Can pursue both Res Ipsa and negligence?

Factual Cause, BUT FOR: Without the cause the event wouldn’t have occurred (Rutledge). Some courts say just need to multiply chances.

    Substantial factor test: subtract other sufficient causes and do but-for. (sanders)
    Multiple sufficent causes: Necessary component of a causal set that probably would have caused injury absent other causal sets. (June)
    Concerted action: Common design or knowledge or encouragement (Clausen)
    Alternative liability: 2 act and 1 is factual cause but not sure who (Summers). Actor must prove innocence and all parties must be named.
    Market Share Liability: Sue substantial share, liable for proportion (Sindel. DES)
    Lost Opportunity: Medical cases, not taking steps to increase chances. Higher than 50% (Grant), possibly as low as 5% (Murrey)
    Medical relationship, empirical evidence, often happens, deep pockets

Proximate Cause, Scope: Not in Intentional torts, unless it didn’t increase risk of harm (R3)

    (1) type of harm (Royal Indemnity) to (2) correct plaintiff (Palsgraf) in (3) the Array of Foreseeable Risks and (4) defendant creates or exacerbates it.
    Liable to rescuers and subsequent injuries (even medical Younger)
    Refocused Breach Approach: Specific PL justify precautions? (Wagon Mound)
    Superseding Cause: Dramatic 3rd party factual causes, limit liability (Meyering)


    Single, indivisible injury: Liable for whole, can’t collect more than whole.
    How far apart? (Pang) 5 months, (Potts) 13 days
    Nature, pre-existing: Just damages they caused (Follet – lung cancer + car accident)
    Eggshell skull rule: Take victim as found (Lancaser)
    Looming threat: How certain? (Dillon – falling)

Compensatory Damages: Past/future impact,

    Pecuniary: Medical expenses, earning capacity: Stats (Niles), Avgs (Rodriguez), inflation & present value
    General: Pain & suffering, perhaps hedonic (Banks)
    Punitive: Shouldn’t be greater than 9:1 of compensatory dmg (State Farm)

Derivative Claims: Brought by surviving spouse, children, parents

    Loss of Consortium: Injured spouse can’t perform, other spouse recovers
    Survival Statutes: Recover for dead’s pain and suffering
    Wrongful Death: Heirs receive support for their loss

DEFENSES – NEGLIGENCE: (1) Comparative Negligence, (2) Assumption of risk, (3) Failure to avoid consequences, (4) Failure to mitigate damages

Comparative: Pre-accident conduct by victim that was a cause of the accident.

    Pure: Recover proportional to non-negligence
    Modified: Defendant must be greater than 50% or greater than 51%
    Contributory: Rare. No recovery at all. Exceptions (Wanton, children, etc.)

Assumption of the risk: Waiver of the risks, disfavored. Use Tunkl factors:
Relationship, nature of service, public interest?, extent of waiver, economic setting, adhesion, additional payment for extra coverage?

    Parent’s release of minors vitiated (Vans Skate Park)
    Assume inherent risk of an activity by participation (Bennett)
    Firefighters rule – occupational risks are waived
    Subjective assumption of risk when knowingly encounters risk

Failure to avoid consequences: Pre-accident conduct by victim that caused/increased damages.
Failure to mitigate damages: Post-accident conduct that caused/increased damages. Either barred from recovery to those damages or a % reduction.

Governmental Immunity: (1) government function? (2) immunity waived for this activity? (3) exception to the waiver? (Glattli)
Discretionary exception: (1) Judgment or choice? (2) Choice within discretionary exception’s shield (public policy)?
Sovereign immunity (not liable), Waiver, Exception to waiver (not liable)

MISCELLANEOUS: Vicarious Liability, Strict Liability, Private + Public Nuisance

Vicarious Liability: Liable because of special relationship (parent/child, car owner/driver)

    Respondeat Superior: Employer with employee (manner and means) and not with contractor (result). Trucker’s road rage not accepted (Nichols)
    (1) action employed to do, (2) occurs in designated time + space, (3) serving master, (4) force must not be unexpected by master (R2)
    Non-delegable duties: (1) affirmative duties imposed by law or company, (2) duties arising out of nature of work (Pusey)

Strict Liability: Don’t have to prove intentional tort or negligence

    Wild Animals: (1) foreseeable injury based on animal, (2) foreseeable plaintiff
    Abnormally Dangerous Activity: limited to foreseeable risks
    Abnormal Factors: (a) probability of harm, (b) severity of harm, (c) reasonable care inadequate, (d) uncommon activity, (e) inappropriate locale, (f) community value (R + Siegler)
    Cairns says non-natural conditions bring strict liability
    Policy: Economic burden, deterrent, proof problems

Private Nuisance: (1) Intentional (2) substantial (3) unreasonable interference w/ ordinary use (Amphitheaters) and enjoyment of real property.
Noxious gas, cement particles

Public Nuisance: (1) Intentional (2) unwarranted (3) interference with public safety, health, welfare, and morals.
Temporary: recover lost rental value
Must be public entity or individual suffered a special harm

Nuisance is a question of fact for jury